f 


or 


H  Wr  ty'% 

DOCUMENT  NO.  XXIII. 


,J  BOARD  OF  ASSISTANTS. 


OCTOBER  8,  1832. 


Report  of  the  Comptroller,  and  Opinion  of  the  Counsel  of  the 
Corporation,  on  Construction  of  the  Law  relative  to  Roads. 
Ordered  to  be  printed,  and  referred  to  the  Law  Committee. 

John  W.  Richardson,  Clerk. 


REPORT  OF  COMPTROLLER, 

On  Construction  of  the  Law  relative  to  Roads. 

The  Comptroller  respectfully  represents  to  the  Common 
Council — 

That  in  a  recent  interchange  of  opinion,  on  the  “Law  creat¬ 
ing  a  Street  Commissioner’s  Department,  &c.”  he  discovered 
for  the  first  time,  that  the  Street  Commissioner  and  himself 
construed  a  portion  of  the  Law  essentially  different  j  so  much 

13 


1 


Doc.  No.  23.]  98 

so,  indeed,  as  in  his  judgment,  to  render  the  interpretation  of 
the  Common  Council  indispensably  requisite. 

The  Street  Commissioner  is  of  opinion  that  the  34th  and 
35th  sections  of  the  Law  of  1827,  which  commit  the  whole 
direction  and  control  of  the  Roads  to  the  Road  Committee 
have  never  been  annulled,  but  do  now  continue  in  full  force 
and  effect — that  therefore  the  Law  of  October  5th,  1831,  so 
far  as  it  relates  to  Roads,  is  entirely  inoperative  on  his  De¬ 
partment  ;  and  consequently  that  his  approval  of  the  bills  for 
work  done  on  the  Roads,  is  a  matter  of  mere  form  ;  involving 
him  in  no  personal  responsibility  for  their  accuracy,  in  any 
point  of  view  whatever.  He  enforces  the  belief  that  such 
has  been  his  construction  of  the  Law,  by  alleging  the  fact, 
that  he  was  not  aware  of  the  employment  of  the  men,  the 
number  employed,  the  price  to  be  paid,  nor  the  extent  to 
which  the  work  was  to  be  carried  on.  He  further  informs, 
and  desires  it  to  be  communicated  to  the  Common  Council, 
that  his  construction  is  in  conformity  with  the  interpretation 
of  the  Counsel  of  the  Board,  with  regard  to  the  Third 
Avenue. 

The  preceding  having  been  submitted  to  and  approved  by 
the  Street  Commissioner,  the  Common  Council  are  thus 
fairly  put  in  possession  of  that  officer’s  views  of  the  subject. 

The  Comptroller  having  arrived  at,  and  acted  on  conclu¬ 
sions  diametrically  opposed  to  the  foregoing,  he  feels  it  in¬ 
cumbent  on  him  to  avail  of  the  first  occasion  to  submit  these 
adverse  opinions  to  the  Common  Council ;  and  injustice  to 
himself  to  show,  that  if  the  result  of  his  investigation  of  the 
matter,  be  not  the  true  and  legitimate  meaning  of  the  Law, 
it  is  at  least  reasonable. 

The  “  Law  for  the  appointment  of  a  Street  Commissioner,” 
&c.,  &c.,  passed  14th  of  May,  1827,  section  34th,  says, 
“  That  the  Street  Commissioner  shall  be  the  Overseer  of 
the  Roads  or  Highways  in  the  said  City,  and  it  shall  be  his 


99 


[Doc.  No.  23. 


kO 

tr 


duty  to  regulate  and  keep  the  same  in  repair.55  Section  35th, 
says,  “  That  a  Committee  of  the  Common  Council  shall, 
from  time  to  time,  he  appointed,  to  consist  of  five  persons,  to 
be  denominated  the  Road  Committee  ;  whose  duty  it  shall 
be  to  examine  the  state  of  the  Roads  or  Highways  in  the  said 
City,  at  least  once  in  every  month,  and  to  give  the  said  Over¬ 
seer,  together  with  such  other  persons  employed  on  the  said 
Roads,  from  time  to  time,  such  directions  as  they  may  think 
proper,  relative  to  the  regulating  and  keeping  the  same  in 
repair.55 

The  “  Law  creating  a  Street  Commissioner’s  Department, 
&c.,  approved  October  5th,  1831,55  section  3d,  makes  it 
“  the  duty  of  the  Street  Commissioner  to  take  the  general 
charge  of  viewing  and  determining,  from  time  to  time, 
whether  any,  and  what  improvements  or  repairs  are  neces¬ 
sary,  and  can  be  made  to  any  of  the  streets  or  roads,  and  to 
report  the  same  to  the  Common  Council,  together  with  the 
best  mode  of  doing  the  same.” 

The  Comptroller  is  of  opinion  that  the  34th  and  35th  sec¬ 
tions  of  the  Law  of  1827,  are  effectually  abrogated  in  a 
variety  of  ways  for  example,  when  different  sections  of 
the  same  law,  or  laws  of  different  dates  come  in  collision,  it 
is  believed  to  be  a  safe,  and  indeed  the  generally  adopted 
rule,  to  construe  the  last  enacted,  as  the  governing  section  or 
law,  as  the  case  may  be.  Now  apply  this  principle  to  the 
laws  in  question,  and  the  result  must  necessarily  be,  the  com¬ 
plete  annulment  of  the  34th  and  35th  sections  referred  to. 
Again — those  sections  vested  with  power,  and  enjoined  duties 
on  a  Committee,  which  is  not  now  known,  either  by  name 
or  number,  and  of  course  cannot  be  charged  with  executive 
duties.  Again — the  6th  section  of  the  present  Law  declares, 
“  That  all  the  Laws  and  Ordinances  heretofore  enacted  by 
the  Mayor,  Aldermen  and  Commonalty  of  the  City  of  New 
York,  defining  the  duties  of  the  Street  Commissioner,  or  in 


Doc.  No.  23.] 


100 


any  way  relating  to  the  same,  which  are  not  inconsistent  with 
the  provisions  of  this  ordinance,  shall  not  be  constructed  as 
repealed,  modified,  or  affected  thereby  ;  but  shall  continue 
and  remain  in  full  force.” 

Now,  it  is  confessedly  difficult  to  imagine  what  more 
natural  inference  can  be  drawn  from  the  foregoing,  than  that 
those  Laws  or  Ordinances  which  are  inconsistent  with  the  pro¬ 
visions  of  the  last  ordinance,  shall  be  construed  as  repealed , 
&c.  But  further — the  21st  section  of  Amendments  to  the 
Charter,  requires  that  “  The  executive  business  of  the  Cor¬ 
poration  of  New  York  shall  hereafter  be  performed  by  distinct 
Departments,  which  it  shall  be  the  duty  of  the  Common 
Council  to  organize  and  appoint  for  that  purpose.” 

It  will  doubtless  be  observed  that  this  is  imperative ,  and  the 
Common  Council  pursuant  thereto,  did,  on  the  5th  October, 
1831,  create  this  executive  department,  and  charged  it  with 
the  very  duties  previously  performed  by  the  Road  Committee 
under  the  former  organization  of  the  Corporation  ;  but  with 
this  difference  as  to  power — that  of  the  Committee  was 
plenary,  that  of  the  Department  is  limited  to  cases  requiring 
only  slight  repairs ;  all  else  is  required  to  be  done  by  con¬ 
tract,  and  through  the  Street  Commissioner,  whose  duties 
preliminary  to  finishing  contracts,  are  very  particularly  de¬ 
fined  in  the  beforementioned  3d  section  of  the  Law ;  con¬ 
sequently,  the  Committees  are  relieved  from  executive  duties, 
until  they  shall  be  charged  with  them  by  a  special  act  of  the 
Common  Council,  and,  of  necessity,  the  responsibility  must 
be  with  the  Head  of  the  Department,  else  the  intentions  of 
the  charter,  as  well  as  the  Law,  are  completely  frustrated — 
at  least,  such  is  the  judgment  of  the  Comptroller. 

Being  officially  informed  by  the  Street  Commissioner,  that 
his  written  approval  of  the  bills,  that  have  been  or  may  be 
presented  for  payment,  is  to  be  regarded  in  no  other  light 
than  as  a  mereformy  the  Comptroller  has  decided  to  postpone 


101 


[Doc.  No.  23. 


any  farther  payment  of  such  bills  for  working  on  the  public 
roads,  until  he  obtains  the  directions  of  the  Common  Coun¬ 
cil  in  relation  to  the  same. 

Respectfully  submitted, 

T.  J.  WATERS, 

Comptroller. 

New  York ,  June  25th ,  1832. 


OPINION. 

Opinion  of  the  Counsel  of  the  Corporation ,  on  the  Comptroller* $ 

Report ,  relative  to  Roads ,  fyc. 

I  have  attentively  considered  the  communication  made  by 
the  Comptroller  to  the  Common  Council,  by  which  it  ap¬ 
pears  that  a  difference  of  opinion  exists  between  him  and  the 
Street  Commissioner,  respecting  the  duties  of  the  latter  offi¬ 
cer,  in  regard  to  the  expenditures  for  work  done  on  the 
Roads. 

The  principal  point  of  disagreement  appears  to  be,  whether 
the  3oth  section  of  the  Law  for  the  appointment  of  a  Street 
Commissioner,  passed  May  14th,  1827,  is  still  in  force. 

By  this  section  it  was  ordained,  that  a  Committee  of  the 
Common  Council  should  be  appointed,  to  consist  o (five  per¬ 
sons,  to  be  denominated  the  Road  Committee ,  whose  duty  it 
should  be  to  give  the  Street  Commissioner  (as  Overseer  of 
Roads,)  and  all  others  employed  on  the  Roads,  such  direc¬ 
tions  as  they  might  think  proper,  relative  to  the  regulating 
and  keeping  the  same  in  repair.  The  whole  subject  was 
undoubtedly  by  this  section,  placed  under  the  control  of  such 
Committeee,  and  no  responsibility  rested  on  the  Street  Com- 


Doc.  No.  23.] 


102 


missioner  in  his  capacity  of  Overseer  of  Roads,  except  that 
of  obeying  such  directions  as  the  Committee  might  give  him, 
or  as  might  emanate  directly  from  the  Common  Council,  in 
regard  to  Regulating  Roads,  and  keeping  them  in  repair. 

But  whatever  may  now  be  the  duties  of  the  Street  Com¬ 
missioner  in  respect  to  Roads,  under  the  Law  creating  his 
Department,  or  any  Law  amending  the  same,  I  am  perfectly 
satisfied  that  the  35th  section  of  the  Law  passed  14th  May, 
1827,  is  no  longer  in  force  ;  and  that  there  is  no  such  Com¬ 
mittee  as  that  bearing  the  denomination  or  charged  with  the 
duties  specified  in  that  section.  Independently  of  all  other 
grounds  for  this  opinion,  it  would  be  enough  to  say  that  the 
section  must  be  strictly  construed,  such  Committee  must,  by 
its  very  appointment,  consist  of  five  members — neither  more 
nor  less,  and  it  must  be  denominated,  the  Road  Committee. 
Under  the  new  organization  of  the  Common  Council,  no 
such  Committee  by  name  or  as  to  number ,  has  been  created 
by  either  Board  ;  and  if  it  had,  it  still  would  not  have  been 
a  Committee  of  the  Common  Council  within  the  meaning  of  the 
section,  which  had  reference  to  an  act  of  the  whole  Body  as 
one  Board .  Two  Committees,  one  from  each  Board,  could 
not,  of  their  own  accord,  or  by  acting  in  concert,  from  such 
a  Committee,  as  is  contemplated  by  that  section,  nor  can 
this  difficulty  be  got  over  by  any  latitude  of  construction 
founded  upon  what  might  appear  to  be  the  reasonableness  or 
convenience  of  the  matter. 

The  act  to  amend  the  charter,  passed  in  1830,  required 
that  the  executive  business  of  the  Corporation,  should  there¬ 
after  be  performed  by  distinct  departments,  and  made  it  the 
duty  of  the  Common  Council  to  organize  and  appoint  such 
departments  for  that  purpose.  The  object  of  this  provision 
was  to  take  away  from  Committees,  and  transfer  to  executive 
officers,  duties  theretofore  exercised  by  the  former  ;  and  the 
Common  Council  in  obedience  to  it,  passed  laws  creating 


103 


[Doc.  No.  23. 


distinct  departments  for  the  performance  of  such  duties  ; 
among  which  was  the  law  creating  the  Street  Commissioner’s 
Department,  and  prescribing  his  duties.  Whether  that  law 
be  perfect  in  its  details  or  otherwise,  it  can  hardly  be  doubted 
that  the  Common  Council  intended  by  it,  to  comply  with  the 
charter,  and  to  invest  the  Street  Commissioner  as  the  head 
of  a  department,  with  the  exective  powers  respecting  roads 
formerly  entrusted  to  the  Road  Committee. 

The  duty  of  the  Street  Commissioner  in  respect  to  roads, 
is  contained  in  the  third  section  of  that  law,  the  greater  part 
of  which  is  an  exact  copy  of  the  third  section  of  the  old  Law 
of  1827  :  and  the  substance  of  all  that  is  new  in  it  in  refer¬ 
ence  to  Roads,  is,  that  it  is  made  the  duty  of  the  Street  Com¬ 
missioner  to  advertise  for  estimates  in  constructing  roads,  and 
to  report  such  estimates  to  the  Common  Council,  (since  al¬ 
tered  to  the  Committee  on  Roads  and  Canals,)  previous  to 
finishing  contracts.  In  all  cases  requiring  slight  repairs,  the 
section  contemplates  that  the  expenditure  may  be  made  with¬ 
out  advertising  for  estimates  or  making  contracts. 

By  the  last  sentence  of  the  section,  the  Street  Commis¬ 
sioner  is  required  to  countersign  all  bills  which  in  his  opinion 
are  correct,  for  building  or  repairing  the  public  wharves  or  piers, 
and  which  are  certified  by  the  Superintendent  of  Wharves 
and  Piers  ;  and  to  control  the  expenditures  connected  with 
lands  and  places;  but  this  does  not  appear  to  have  any  refer¬ 
ence  to  bills  or  expenditures  for  work  done  on  roads. 

It  would  appear,  therefore,  that  the  law  creating  the  Street 
Commissioner’s  Department,  intended  that  all  work  in  con¬ 
structing  roads,  should  thenceforward  be  done  by  contract, 
to  be  made  by  the  Street  Commissioner  ;  and  the  agency  of 
that  office  in  respect  to  such  contracts,  as  well  as  in  cases  of 
slight  repairs,  necessarily  requires  that  he  should  approve  of 
the  bills,  and  that  such  approval  should  not  be  a  matter  of 
mere  form  involving  no  responsibility.  But  I  suspect  the 


Doc.  No.  23.] 


104 


difficulty  which  has  occasioned  the  Comptroller’s  communi¬ 
cation,  arose  upon  bills  for  work  done  on  the  Third  Avenue, 
which  was  commenced  before  the  passage  of  the  law  creating 
the  Street  Commissioner’s  Department,  and  which  has  been 
continued  since  without  reference  to  any  change  in  the  Law: 
and  as  mention  is  made  in  the  Comptroller’s  communication, 
of  an  opinion  attributed  to  me  in  regard  to  the  Third  Avenue, 
I  beg  leave  to  state,  to  the  best  of  my  present  recollection,  I 
did  sometime  since  say,  probably  to  the  Street  Commissioner, 
that  if  previous  to  the  creation  of  the  Street  Commissioner’s 
Department,  a  resolution  had  been  passed  in  Common 
Council,  directing  one  of  its  Committees  to  cause  that  Avenue 
to  be  finished,  and  the  work  was  going  on,  the  Law  creating 
the  Street  Commissioner’s  Department,  or  any  law  pre¬ 
scribing  a  different  rule  in  regard  to  the  working  of  Roads 
generally,  should  not  be  considered  as  applying  to  the  work 
doing  on  the  Third  Avenue,  until  the  powers  of  such  Com¬ 
mittee  had  been  rescinded  by  an  express  resolution  for  such 
purpose,  and  even  then,  that  all  contract  previously  made 
would  be  binding,  although  the  work  had  not  yet  been  done, 
whether  estimates  had  been  advertised  for  or  not.  I  have  no 
recollection  of  having  ever  expressed  any  opinion  but  the 
above,  which  could  have  been  supposed  by  the  Street  Com¬ 
missioner  to  have  a  bearing  upon  the  matter  at  issue  between 
him  and  the  Comptroller. 

Upon  the  whole,  I  think  the  Comptroller  has,  in  his  com¬ 
munication,  taken  a  correct  view  of  the  duties  intended  to  be 
put  upon  the  Street  Commissioner,  by  the  law  creating  his 
department,  whatever  may  be  the  difficulties  in  performing 
them,  as  respects  the  roads  which  had  been  commenced,  but 
were  unfinished  when  the  law  was  passed. 


R.  EMMET. 


DOCUMENT  No.  39. 


BOARD  OF  ALDERMEN, 

DECEMBER  30,  1839. 

Report  of  the  Committee  on  Roads  and  Canals ,  in  favor 
of  granting  permission  to  the  Harlaem  Rail  Road 
Company  to  lay  their  rails  through  Manhattan  street 
to  the  Hudson  River.  Laid  on  the  table  and  ordered  to 
be  printed . 

THOMAS  BOLTON,  Clerk. 


The  Committee  on  Roads  and  Canals,  to  whom  was  re¬ 
ferred  the  annexed  petition  of  the  Harlaem  Rail  Road  Com¬ 
pany,  for  permission  to  carry  a  branch  of  their  road  through 
Manhattan  street  to  the  Hudson  River,  at  Manhattanville, 
respectfully 

REPORT : 

That  the  original  route  for  the  branch  of  the  said  road 
was  through  One  hundred  and  twenty-fifth  street  to  the  Hud¬ 
son  River ;  but  that  in  consequence  of  the  elevated  character 
of  the  ground  through  which  One  hundred  and  twenty-fifth 


Doc.  No.  39. J 


420 


street  runs  at  the  river,  it  was  found  impracticable  and  inex¬ 
pedient  to  approach  the  river  through  that  street,  and  in  con¬ 
sequence  the  Rail  Road  Company  made  application  to  the 
Legislature  in  1836,  to  change  the  route  at  the  Ninth  avenue, 
by  taking  Manhattan  street,  which  application  was  granted, 
provided  the  consent  and  approbation  of  the  Mayor,  Aider- 
men  and  Commonalty  should  be  obtained.  The  Company 
therefore  ask  permission  to  carry  a  branch  of  their  road  as 
aforesaid. 

The  Committee  have  fully  considered  the  application,  and 
believe  that  the  improvement  proposed  will  prove  highly  ad¬ 
vantageous  to  the  citizens  of  Manhattanville.  They  are  in 
favor  therefore  of  the  proposition,  and  recommend  the  adop¬ 
tion  of  the  following  resolution  : 

Resolved ,  That  permission  be,  and  the  same  is  hereby 
granted  to  the  Harlaem  Rail  Road  Company,  to  extend  a 
branch  of  their  road  by  double  track,  from  the  intersection 
of  the  Ninth  avenue  and  One  hundred  and  twenty-fifth  street, 
through  Manhattan  street  to  the  Twelfth  avenue,  and  through 

said  avenue  to  One  hundred  and  Thirty-third  street  and  the 

* 

Hudson  River,  under  the  direction  of  the  Street  Commis¬ 
sioner. 

DANIEL  F.  TIEMANN, 
SAMUEL  J.  WILLIS, 
JAMES  FERRIS. 


* 


\  1 


V 


\  f 

i 

i  * 
- 


I 


DOCUMENT  No.  52. 

* 

BOARD  OF  ALDERMEN, 

FEBRUARY  24.  1840. 

* 


Report  of  the  Street  Committee ,  cm  petition  of  the 
Harlae7n  Rail  Road  Company ,  £0  lay  their  rails  in 
Canal  street .  Laid  on  the  table  and  ordered  to  be 
printed  for  the  use  of  the  members . 

THOMAS  BOLTON,  Clerk. 


The  Street  Committee,  to  whom  was  referred  the  annexed 
petition  of  the  Harlaem  Rail  Road  Company,  for  permission 
to  lay  their  rails  through  Canal  street  to  the  Hudson  River, 
respectfully 

REPORT : 

That  they  have  taken  some  pains  to  obtain  information  in 
regard  to  the  views  and  feelings  of  those  interested  in  pro¬ 
perty  in  the  street  through  which  the  rails  are  proposed  to 
be  layed,  by  causing  public  notice  to  be  given  of  the  propo¬ 
sition,  and  requesting  all  those  interested  and  opposed  to  the 
same,  to  present  their  objections  in  writing  at  the  Street 


Doc.  No.  52.] 


530 


Commissioner’s  office,  by  a  certain  day,  and  allowing  a  suf¬ 
ficient  time  to  elapse  after  the  period  named,  to  give  all  a 
full  opportunity  of  doing  so.  But  one  remonstrance  has 
been  received,  which  is  hereunto  annexed.  It  is  from  Henry 
J.  Anderson,  owner  and  lessee  of  Nos.  63J,  67,  60  and  62 
Canal  street,  who  states  it  to  be  his  opinion  that  the  occupa¬ 
tion  of  the  street  as  proposed,  will  prove  a  serious  injury  to 
the  value  of  the  property.  The  Committee  have  received  a 
similar  remonstrance  from  the  same  individual  through  the 
Board  ;  also  two  petitions  in  favor  of  the  proposition,  nume¬ 
rously  signed  by  owners  and  lessees  of  property  in  the  street, 
who  desire  that  the  rails  may  be  extended  through  the  street, 
believing  that  in  consideration  of  its  great  width,  and  the 
increasing  business  and  travel  in  that  part  of  the  city,  that 
they  will  be  productive  of  great  convenience  to  the  citizens 
and  benefit  to  the  property. 

The  Committee  are  of  opinion,  that  the  rails,  if  properly 
laid  down,  cannot  be  of  any  possible  inconvenience  or  an¬ 
noyance  to  those  travelling  the  street,  either  on  foot  or  in  car¬ 
riages,  or  disadvantageous  to  property  ;  but  on  the  contrary, 
must  confer  advantages  upon  those  residing  in  that  section 
of  the  city,  by  providing  them  with  a  safe,  pleasant,  and 
cheap  conveyance  to  and  from  their  places  of  business  in  the 
lower  part  of  the  city.  It  will  also  save  the  city  a  conside¬ 
rable  sum,  (which  would  otherwise  be  incurred,)  in  keeping 
the  middle  of  the  street  in  good  repair,  as  the  Rail  Road 
Company  would  be  obliged  to  repave  it  twenty  feet  in  width, 
and  maintain  it  in  ^ood  order. 

CD 

Under  all  the  circumstances  connected  with  the  subject, 
the  Committee  are  of  opinion  that  it  is  expedient  to  grant  the 
Company  the  privilege  which  they  desire,  under  certain  con¬ 
ditions  :  the  first  of  which  is,  that  the  tracks  shall  be  laid 
down  with  double  iron,  like  those  in  Centre  street,  and  that 
the  twenty  feet  in  width  of  pavement,  in  and  about  the  rails, 
shall  be  done  with  wood ;  in  which  case  the  iron  rails  can 

i 

be  let  into  the  wood  in  such  manner  as  to  cause  no  possible 


531 


[Doc.  No.  52. 


obstruction  to  the  ordinary  travelling.  The  Committee  also 
recommend  that  the  Company  shall  not  proceed  to  lay  their 
rails  in  Canal  street  until  they  shall  have  laid  their  branch 
railway  through  One  hundred  and  twenty-fifth  street  and 
Manhattan  street,  to  the  Tenth  avenue,  as  required  by  their 
Charter. 

The  Committee  submit  for  adoption  the  following  resolu¬ 
tions  : 

Resolved ,  That  permission  be,  and  the  same  is  hereby 
granted  to  the  New  York  and  HarlaemRail  Road  Company, 
to  lay  a  double  track  of  rails  through  Canal  street,  from 
Centre  street  to  the  Hudson  River,  provided  that  the  same 
be  laid  with  double  iron  like  those  in  Centre  street ;  and  pro¬ 
vided  that  twenty  feet  in  width  of  the  pavement,  in  and  about 
the  rails,  be  paved  with  wood,  at  the  expense  of  the  Com¬ 
pany.  The  said  Company  not  to  avail  themselves  of  the 
permission  hereby  granted,  by  laying  their  rails,  until  they 
shall  have  completed  their  branch  railway  through  One  hun¬ 
dred  and  twenty-fifth  street  and  Manhattan  street,  to  the 
Tenth  avenue. 

Resolved ,  That  the  laying  of  the  rails  and  the  pavement, 
be  done  under  the  direction  of  the  Street  Commissioner. 

C.  S.  WOQDHULL, 

DANIEL  F.  TIEMANN. 


• 

. 

- 


• 


t 


« 

N  . 

0  '  : 

' 


•  - 

' 

-  « 


'  . 


'  .. 


r 


\ 


REPORTS 


OF  THE 


Committee  on  Wharves,  Piers  and  Slips^ 

IN  RELATION  TO 

/  i 

INCREASING  THE  RATES  OF  WHARFAGE, 
With  a  Communication  from  the  Comptroller, 


And  Correspondence  with  the  Chamber  of  Commerce  on  the  same 

subject. 


. 

- 


. 

. 


. 

. 

■ 

- 

1 

s*r  ^  - 


, 


i  ...  _ 


'  ’  '  .  g;  Hi 


' 

i  1 1 


* 


V  . 


DOCUMENT  No.  54. 

BOARD  OF  ALDERMEN, 

FEBRUARY  24,  1840. 


Opinion  of  the  Counsel  as  to  the  right  of  the  Harlaem 
Rail  Road  Company  to  construct  and  use  their  rails  in 
the  Public  Streets  of  the  City .  Laid  on  the  table  and 
ordered  to  be  printed  for  the  use  of  the  members . 

THOMAS  BOLTON,  Clerk. 


Resolved ,  That  the  Counsel  of  the  Corporation  report 
to  this  Board  his  opinion  upon  the  right  of  the  Common 
Council  to  permit  the  Harlaem  Rail  Road  Company,  or  any 
other  chartered  company,  to  use  the  centre  of  the  public 
streets  for  private  purposes  and  individual  gain,  so  as  in  any 
respect  to  abridge  the  use  of  the  public  therein. 

By  Elijah  F.  Purdy. 


OPINION. 


The  annexed  resolution  requires  my  opinion  to  be  given 
“upon  the  right  of  the  Common  Council  to  permit  the  Har- 


Doc.  No.  54.] 


552 


provided  they  should  restore  the  street  thus  intersected  in  a 
sufficient  manner  not  to  have  impaired  its  usefulness — to  con¬ 
struct  and  use  their  rail  way  across  or  along  any  of  the  streets 
or  avenues,  as  designated  on  the  map  of  the  city,  by  the  con¬ 
sent  of  the  Mayor,  Aldermen  and  Commonalty  of  the  said 
city,  who  are  thereby  authorized  to  grant .  permission  to  the 
Company  to  construct  their  rail- ways  across  or  along  said 
streets  or  avenues,  or  prohibit  them  from  constructing  the 
same.  And  it  is  made  lawful  for  the  Company  to  fix  and  re¬ 
gulate  their  tolls  and  charges  for  the  transportation  of  pro¬ 
perty  or  persons  on  the  said  road. 

By  an  ordinance  passed  December  22,  1831,  the  Corpora¬ 
tion  authorized  the  Rail  Road  Company  to  lay  down  their 
rail-way  salong  the  Fourth  avenue,  from  Twenty-third  street 
to  the  Harlaem  River,  and  a  branch  thereof  along  One  hun¬ 
dred  and  twenty-fifth  street  to  the  Hudson  River — with  the 
jiroviso  that  if  it  should  at  any  time  appear  to  the  Corpora¬ 
tion  that  the  said  rail-ways,  or  any  part  thereof,  should  ob¬ 
struct  the  future  regulation  of  the  city,  or  the  ordinary  uses 
of  any  street  or  avenue,  (of  which  the  Corporation  should  be 
the  sole  ’judges,)  the  Rail  Road  Company  should  forthwith 
provide  a  remedy  for  the  same  ;  and  if  required,  replace  the 
street  or  avenue  in  as  good  condition  as  it  was  before  the  said 
rail-way  was  laid- down. 

By  the  Act  of  April  25,  1831,  the  Charter  of  the  Harlaem 
Rail  Road  Company  was  amended  so  as  to  allow  them,  with 
the  permission  of  the  Corporation,  to  extend  their  rails  along 
the  Fourth  avenue  to  Fourteenth  street,  and  through  such 
other  streets  as  the  Corporation  might,  from  time  to  time,  per" 
mit — provided  that  no  carriage  or  vehicle  should  be  pro¬ 
pelled  at  a  greater  speed  than  at  the  rate  of  five  miles  an 
hour,  in  any  street  of  said  city  below  Fourteenth  street. 

By  an  ordinance  of  the  10th  May,  1832,  the  Corporation 
consented,  “  so  far  as  their  rights  extend ^  that  the  said 
Company  might  continue  their  rails  southerly  to  Prince  street, 
subject  to  the  same  restrictions  as  to  the  other  part  of  the 


t 


553 


[Doc.  No.  54. 


road,  and  provided  that  the  rails  be  laid  “  so  as  to  cause  no 
impediment  to  the  common  and  ordinary  use  of  the  streets 
for  all  other  purposes.’' 

On  the  4th  May,  1837,  a  like  consent  was  given  for  the 
Company  to  extend  their  rails  to  Walker  street. 

And  on  the  4th  May,  1S38,  a  further  like  consent  was 
given  to  extend  the  rails  through  Broome  and  Centre,  to 
Chatham  street. 

A  memorial  is  now  presented  on  the  part  of  the  Company, 
for  permission  to  continue  their  rails  from  Centre,  through 
Canal  street  to  the  Hudson  River,  which  has  given  rise  to 
the  present  inquiry. 

It  thus  appears  that  the  Legislature  after  first  authorizing 
the  Company  to  use,  for  the  purposes  of  their  road,  (the 
route  of  which  was  to  be  approved  by  the  Corporation.)  such 
lands  as  they  might  purchase,  or  pay  for  by  appraisement, 
empowered  the  Company  to  extend  their  rail  road  through 
such  of  the  streets  in  the  City  of  New  York,  as  the  Corpo¬ 
ration  might  from  time  to  time  permit. 

Have  the  Legislature  of  the  State  and  the  Corporation  of 
the  City,  combined,  the  power  to  grant  the  authority  con¬ 
ferred  by  the  Acts  above  referred  to  ? 

The  streets  and  highways  in  the  City  of  New  York,  may 
be  divided  into  two  classes,  one  including  such  of  the  an- 
cient  streets  as  were  in  use  prior  to  the  passage  of  the  law 
of  1S07,  (30  Sess.  Chap.  115,)  and  the  other  those  which 
have  been  laid  out  under  the  provisions  of  the  last  mentioned 
Act.  As  to  the  first  class,  there  being  no  statutory  provision 
vesting  the  fee  in  the  Corporation,  but  only  authorizing  the 
land  to  be  converted  to  and  used  for  a  public  highway, 
(Sess.  30,  Chap.  61,  Act  March  21st,  1789.)  >hey  are  governed 
by  the  rules  of  law  applicable  to  other  highways.  These 
rules  are  that  the  fee  to  the  centre  of  the  road  or  street,  be¬ 
longs  to  the  owner  of  the  adjoining  ground,  and  that  the 
public  have  only  a  right  of  passage. 

This  is  the  acknowledged  doctrine  of  the  common  law, 


Doc.  No.  54.] 


554 


and  is  sanctioned  by  the  decisions  in  our  own  state,  and  in 
others  of  the  Union.  (1  Burrows.  143  ;  19  Wend.,  675  ;  11 
Wend.,  502  ;  8  Wend.,  107  ;  1  Wend.,  270  ;  1  Cowen,  238  ; 
6  Mass.,  456 ;  1  Pick.,  122 ;  1  Conn.,  105  ;  1  Yeates,  168 ; 
9  Sarg.  &  Rawle,  31 ;  1  New  Hampshire,  16 ;  3  Kent’s 
Comm.,  432.)  This  doctrine  is  carried  so  far  by  the  autho¬ 
rities  above  cited,  that  the  adjoining  owners  are  held  to  have 
the  exclusive  right  to  the  soil,  while  the  public  have  only  an 
easement  or  right  of  way — and  that  being  such  adjoining 
owners,  they  may  maintain  ejectment  for  any  encroachment 
upon  the  road,  or  trespass  against  any  person  who  digs  up 
the  soil  of  it — and  that  they  may  have  every  use  and  remedy, 
consistent  with  the  right  of  passage  in  the  public  and  with 
police  regulations. 

As  to  the  other  class  of  streets,  laid  out  under  the  law  of 
1807,  and  the  revision  thereof  of  1813,  (2  R.  S.,  414,)  on  the 
confirmation  of  the  Commissioners’  report,  the  Corporation 
become  seised  in  fee  of  the  land  required  for  the  streets, — 
"in  trust  nevertheless  that  the  same  be  appropriated  and 
kept  open  for  a  public  street  forever,  in  like  maimer  as  the 
other  public  streets  in  the  said  city  are ,  and  of  right  ought 
to  be^  The  streets  last  mentioned  are  opened  by  levying  an 
assessment  for  the  value  of  the  land  taken,  and  for  the  ex¬ 
penses  thereof,  upon  the  owners  of  the  adjoining  and  con¬ 
tiguous  property.  The  Corporation  take  the  fee ;  but  the 
owners  pay  for  it.  While  therefore,  the  public  at  large  have 
the  right  of  using  the  street,  because  of  its  character  as  a 
common  highway,  the  individual  owners  from  the  inherent 
right,  resulting  from  their  purchase,  and  from  the  intrinsic 
character  of  their  property,  have  a  special  interest  in  the 
street  itself,  as  incident  to  their  ownership  of  the  adjoining 
land,  and  deprived  of  which,  the  land  itself  would  become 
comparatively  valueless.  The  streets  in  our  city  are  opened, 
not  only  to  subserve  the  ordinary  uses  of  the  public,  but  also 
and  more  especially  for  the  benefit  of  those  who  thereby  ob- 


555  [Doc.  No.  54. 

tain  a  front  upon  the  street,  and  at  whose  charge  such  street 
is  made. 

In  a  very  late  case  decided  in  Kentucky,  (8  Dana,  294,) 
and  particularly  referred  to  hereafter,  Chief  Justice  Robert¬ 
son,  whose  opinions  are  of  acknowledged-  authority,  says, 
“  The  title  to  lots,  contiguous  to  a  public  street,  carries  with 
it  certain  services  and  easements,  almost  indispensable,  and 
as  inviolable  as  the  property  itself,  and  the  owners  have  a 
peculiar  interest  in  the  street,  to  which  neither  the  local  nor 
general  public  can  pretend — a  private  right,  of  the  nature  of 
an  incorporeal  hereditament,  legally  attached  to  their  con¬ 
tiguous  ground,  and  without  which,  the  property  never 
would  have  been  bought  by  them.” 

The  laws  of  our  own  State  fully  acknowledge  this  right, 
by  providing  that  on  closing  a  public  street,  the  adjoining 
owners  shall  be  paid  the  damages  which  they  thereby  sus¬ 
tain. 

We  have  thus  seen,  that  as  to  the  ancient  streets  and  roads 
of  the  city,  the  fee  remains  in  the  adjoining  owners,  subject 
to  the  right  of  passage  in  the  public,  and  to  police  regula¬ 
tion. 

That  as  to  the  new  streets,  the  fee  is  vested  in  the  Corpo¬ 
ration,  subject  to  the  trust  of  “  appropriating  and  keeping 
them  open,  in  like  manner  as  the  other  public  streets  are  and 
of  right  ought  to  be” — and  that  in  this  trust,  the  adjacent 
owners  have  a  special  property. 

The  Constitutions  of  the  United  States  and  of  our  own 
State,  provide  that  “  No  person  shall  be  deprived  of  his  pro¬ 
perty  without  due  process  of  law,  and  that  private  property 
shall  not  be  taken  for  public  use  without  just  compensa- 
tion .” 

This  provision  is  founded  in  natural  equity,  and  is  indis¬ 
pensable  for  the  protection  of  private  property. 

In  11  Wend.,  151,  the  Supreme  Court  say  that  “the  Con¬ 
stitution,  by  authorizing  the  appropriation  of  private  property 
for  public  use,  impliedly  declares  that  for  any  other  use,  pri- 


Doc.  No.  54.]  556 

vate  property  shall  not  be  taken  from  one  and  applied  to  the 
private  use  of  another.  It  would  be  in  violation  of  natural 
right,  and  of  the  spirit  of  the  Constitution.”  And  in  19 
Wend.,  676,  they  say,  “Our  Constitution  means  that  the 
Legislature  should  have  no  power  to  deprive  one  of  his  pro¬ 
perty  and  transfer  it  to  another,  by  enacting  a  bargain  be¬ 
tween  them,  unless  it  be  in  the  hands  of  the  latter,  a  trust 
for  jmblic  use 

Is  the  appropriation  of  public  streets  to  the  uses  of  the 
Harlaem  Rail  Road  Company,  within  the  meaning  of  the 
Constitution,  the  taking  of  property  for  u  public  use  ?” 

In  the  case  of  Bloodgood,  vs.  The  Mohawk  and  Hudson 
Rail  Road  Company,  18  Wend.,  77,  the  Court  of  highest  re¬ 
sort  determined  that  the  Legislature  of  this  State  have  the 
constitutional  power  to  authorize  the  taking  of  private  pro¬ 
perty  for  the  purpose  of  making  rail  roads  or  other  public 
improvements  of  the  like  nature,  whether  such  improve¬ 
ments  be  made  by  the  State  itself,  or  through  the  medium  of 
a  Corporation,  or  Joint  Stock  Company,  on  making  ample 
provision  for  a  just  compensation  for  the  property  taken,  to 
the  owners  thereof. 

The  decision  of  this  case  was  founded  on  the  belief  that 
rail  roads,  when  designed  for  travelling  and  transportation, 
are  great  public  benefits,  and  that  the  right  of  eminent  do¬ 
main  remained  in  the  people,  in  their  sovereign  capacity,  to 
be  exercised  for  the  public  benefit,  either  directly,  through 
the  immediate  officers  of  the  government,  or  indirectly, 
through  the  medium  of  corporate  bodies  or  individuals  ;  and 
that  if  the  public  interest  can  be  in  any  way  promoted  by  the 
taking  of  private  property,  it  must  rest  in  the  wisdom  of  the 
Legislature  to  determine,  whether  the  benefit  to  the  public 
will  be  of  sufficient  importance  to  render  it  expedient  for 
them  to  exercise  the  right  of  eminent  domain .  and  to  autho¬ 
rize  the  interference  with  the  private  rights  of  individuals 
for  that  purpose. 

The  highest  authorities  of  this  State,  having  so  deter- 


557 


[Doc.  No.  54. 


mined,  it  is  too  late  to  dispute  the  power  of  the  Legislature  in 
relation  to  the  present  question.  It  remains,  however,  to  be 
considered  whether  the  power  has  been  lawfully  exercised 
in  the  present  instance. 

The  Charter  first  provides  that  the  Company  shall  take 
possession  and  use  such  lands  only  as  they  shall  obtain  by 
donation  or  by  purchase  ;  and  then  provides  that  nothing 
therein  shall  be  construed  to  authorize  the  Company  to  use 
any  of  the  public  streets,  whether  opened  or  unopened , 
without  the  permission  of  the  Corporation,  which  permission 
they  are  thereby  authorized  to  grant. 

As  to  the  streets  as  yet  unopened,  (and  the  whole  line  of 
the  Fourth  avenue  down  to  Twenty-eighth  street,  is  as  yet 
so,)  the  Corporation  have  no  possible  interest  therein.  It  is 
all  private  property  ;  and  yet  having  been  laid  out  by  the 
Commissioners  under  the  law  of  1807,  and  forming  a  part 
of  the  city  plan,  if  the  owners  of  real  estate,  bounded 
thereon,  have  sold  and  conveyed  lots  in  conformity  to  such 
plan,  such  sale  would  amount  to  a  dedication  of  the  streets 
for  public  use  ;  and  the  title  to  such  streets,  although  as  yet 
unopened,  could,  thereafter,  only  be  sold,  subject  to  the  ease¬ 
ment  of  a  perpetual  right  of  way,  extending  to  every  pur¬ 
chaser  from  the  original  proprietor  of  lots  in  the  same  tract. 

This  was  so  decided  by  the  Court  for  the  Correction  of 
Errors,  in  the  case  of  Wyman  vs.  the  Mayor,  &c.  of  New 
York.  11  Wend.,  486. 

As  to  the  Fourth  avenue,  therefore,  the  right  of  property 
belongs  to  the  individual  owners  of  the  fee,  and  to  those, 
who,  under  the  previous  decision,  have 'acquired  a  right  of 
way  over  it,  and  the  Corporation  have  no  title  whatever  to  it 
any  more  than  to  the  adjacent  lots. 

The  consent  of  the  Corporation,  however,  by  the  ordi¬ 
nance  of  December  22d,  1831,  extended  to  this  unopened 
avenue. 

The  Company  did  not  think  such  consent  sufficient ;  but, 
as  is  understood,  have  obtained  by  donation  or  purchase  from 

2 


Doc.  No.  54.] 


558 


the  owners  of  the  fee,  the  right  to  use  the  centre  of  the 
Fourth  avenue  for  their  rail  road. 

Their  purchase  must  remain  subject  to  the  contingency  of 
the  right  of  way  above  alluded  to,  and  of  the  right  of  the 
public  to  have  the  avenue  opened  according  to  law. 

As  to  the  other  streets,  through  which  the  rails  are  con¬ 
structed,  the  Company  have  obtained  the  privilege  neither 
by  donation,  nor  by  purchase,  from  the  individual  owners  ; 
but  rely  entirely,  for  their  right,  upon  the  consent  of  the 
Corporation,  under  the  authority  of  the  Legislature. 

The  streets  of  a  city  are  intended  for  all  the  ordinary  uses 
of  the  public,  in  the  ordinary  mode  of  travel  and  convey¬ 
ance.  For  such  purpose,  they  were  opened  and  intended, 
when  the  right  of  the  public,  and  of  the  adjacent  owners 
were  acquired,  by  the  process  of  opening.  The  application 
of  them  to  a  rail  road  was  certainly  not  then  contemplated. 
Can  they,  then,  be  diverted  to  a  use  entirely  different  from 
their  design,  without  the  consent  of  the  parties  in  interest? 

Under  proper  Legislative  regulation,  Rail  Road  Compa¬ 
nies  are,  undoubtedly,  for  the  public  benefit. 

When  they  are  considered  so,  however,  it  is  in  view  of 
their  providing  themselves  with  an  appropriate  highway  of 
their  own,  where  all  may  travel  who  choose,  at  certain  rea¬ 
sonable  and  fixed  rates  of  toll. 

In  such  cases,  they  do  not  interfere  with  the  public  use, 
but  promote  it. 

If  the  public  highways,  for  the  ordinary  and  necessary 
travel  of  the  people,  are  to  be  diverted  to  the  use  of  Rail 
Road  Companies,  and  especially  without  purchase ,  a  very 
different  question  is  presented. 

I  cannot  but  consider  that  a  street  or  road,  occupied  by 
rail-ways  and  used  for  a  rail  road,  so  far  as  its  space  is  thus 
required,  of  necessity,  ceases  to  be  a  common  highway — be¬ 
cause  there  is  no  reciprocity  of  accommodation. 

How  soon  would  our  great  and  most  convenient  public 
thoroughfares  become  common  nuisances,  if  every  person 


559 


[Doc.  No.  54, 


travelling  on  them  should  mark  out  for  himself  a  straight 
line,  and  keep  on  its  track,  without  any  deviation  ? 

If  such  a  course  should  be  pursued,  one  third  part  of  those 
who  now  travel  them  could  not  be  accommodated. 

Is  it  a  sufficient  answer  to  say  that  it  is  only  allowed  for 
the  purposes  of  a  rail  road  ? 

The  public  streets  are  designed  for  the  common  use  of 
and  you  cannot  confine  its  use  to  any  favored  mode  of  con¬ 
veyance,  without  destroying  its  character  of  a  public  tho -  * 
roughfare . 

Nor  is  the  answer  that  it  is  all  for  the  public  accommoda¬ 
tion,  sufficient ;  because  a  part  of  that  public  is  incommoded, 
and  without  the  plea  of  necessity,  which  appertains  to  the 
setting  off  of  sidewalks,  or  the  erection  of  bridges,, &c. 

In  the  case  of  the  King,  vs.  Russell,  6  East.,  427,  it  was 
held  that  the  primary  object  of  a  street  was  for  the  free  pas¬ 
sage  of  the  public,  and  that  any  thing  which  unnecessarily 
impeded  that  free  passage  was  a  nuisance. 

And,  with  regard  to  the  Harlaem  Rail  Road,  how  is  the 
public  benefited?  The  speed  below  Fourteenth  street  is 
limited  to  five  miles  per  hour,  which  is  permitted  to  all  other 
carriages,  and  the  fare  is  not  less  than  in  other  modes  of  con¬ 
veyance.  The  benefit  can  only  arise  from  the  advantage 
over  all  others,  in  the  free  and  unobstructed  use  of  the  space 
allotted  to  them,  giving  to  them,  at  all  times,  a  clear  passage 
and  consequent  greater  facility  of  travel,  over  all  others. 
This  benefit,  however,  is  derived  from  the  public ,  and  ne¬ 
cessarily,  at  their  expense,  while  the  Company  enjoy  the 
advantage  arising  from  a  more  economical  use  of  power,  and 
a  saving  of  time,  from  the  unobstructed  right  of  way  which 
.they  acquire. 

The  advantages  of  rail  roads  are  mainly  supposed  to  con¬ 
sist  in  furnishing  the  facility  of  rapid  travelling  to  and  from 
places,  that  are  distant,  and  of  transporting  produce  to  mar¬ 
ket.  Such  were  the  instances  before  our  Courts,  when  they 
decided  them  to  be  of  public  benefit,  and  such  may  have 


Doc.  No.  54.] 


560 


been  the  original  design  of  the  Charter  of  the  Harlaem  Rail 
Road  Company.  The  question  is  now  presented,  more  in 
the  light  of  constituting  them  an  omnibus  line  through  the 
city ;  and  it  will  be  a  question  for  the  consideration  of  the 
Common  Council,  whether  such  an  use  was  within  the  con¬ 
templation  of  the  Legislature,  and  whether  the  public  inter¬ 
ests  will  be  thereby  subserved. 

The  course  of  legislation,  with  reference  to  the  principal 
rail  roads  in  our  State  has  been,  to  require  that  they  shall 
do  no  prejudice  to  existing  highways.  If  there  has  been  any 
possibility  of  their  coming  in  contact  with  the  canals,  it  has 
been  provided  that  they  should  only  cross  the  same  in  such 
manner  as  not  in  any  degree  to  obstruct  the  transportation 
thereon,  or  impair  their  usefulness  :  and  in  the  provisions 
of  several  of  the  laws,  relating  to  the  canals,  if  they  neces¬ 
sarily  interfere  with  the  route  of  any  road,  the  Canal  Com¬ 
missioners  are  directed  to  change  the  route  of  such  road,  and 
to  make  a  new  one  for  the  public  use,  before  the  canal  shall 
be  commenced  on  the  line  of  such  road. 

On  the  11th  of  May,  1835,  the  Legislature  authorized  the 
Commissioners  of  Highways  to  consent  that  rail  roads  might 
be  constructed  across  or  on  any  road  or  other  public  high¬ 
way,  provided  that  the  usefulness  of  such  roads  or  highways 
should  not  be  impaired ;  but,  in  all  such  cases,  the  rail 
roads  were  required  to  be  constructed  only  “  upon  land  pur¬ 
chased  for  that  purpose 

This,  I  deem  to  be  a  clear  expression  of  the  sense  of  the 
Legislature,  as  to  the  conflicting  interests  of  rail  roads  and 
ordinary  highways,  and  of  the  respective  rights  of  individuals 
and  of  the  public  therein. 

The  association  owning  the  rail  road  must  purchase  the 
land:  then,  and  then  only,  individual  claim  of  property 
being  satisfied,  can  the  Commissioners  of  Highways  consent 
to  the  appropriation  of  the  road. 

In  the  case  ex  parte  Jennings,  5  Cowen,  525,  a  claim  for 
damages  was  made  on  the  part  of  persons  owning  property 


561 


[Doc.  No.  54. 


bounded  oil  a  stream,  for  diverting  some  of  the  waters  of 
Chitteningo  Creek  to  the  use  of  the  Erie  Canal. 

The  Court  say,  “  individual  property  cannot  be  taken,  or 
which  is  the  same  thing,  individual  rights  impaired ,  for 
the  benefit  of  the  public,  without  just  compensation.  What¬ 
ever  interest  the  claimant  has,  he  is  to  be  paid,  for ,  though 
the  individual  may  have  only  a  limited  interest,  or  a  right 
merely  equitable. 

“It  cannot  be  allowed,  because  the  interest  is  merely  inci¬ 
dental  to  or  issuing*  out  of  the  land,  that  therefore  the  owner 
shall  be  divested  of  his  right,  without  compensation. 

“  Neither  the  State  nor  any  individual  have  the  right  to 
render  a  stream  less  useful  or  valuable  to  the  owner  of  the 
soil  adjacent  to  it,  without  full  recompense.*’ 

I  have  been  referred,  in  behalf  of  the  Company,  to  the  case 
of  the  Lexington  and  Ohio  Rail  Road,  decided  in  the  Court 
of  Appeals  in  Kentucky,  8  Dana,  289,  which  is  the  latest 
case  on  this  subject— and  being  an  important  one,  will  be 
referred  to  at  some  length. 

By  an  Act  of  the  Kentucky  Legislature,  the  Lexington 
and  Ohio  Rail  Road  Company  was  incorporated  with  au¬ 
thority  to  construct  a  rail  road  from  Lexington  to  a  point  on 
the  Ohio  River,  and  to  use  any  land  for  that  purpose,  by  ob¬ 
taining  the  consent  of  the  owners,  or  by  paying  the  value 
thereof,  to  be  assessed  by  a  writ  of  ad  quod  damnum .  Un¬ 
der  this  authority,  the  Company,  by  the  consent  of  the  Cor¬ 
poration  of  the  City  of  Louisville,  extended  the  location  of 
their  road,  by  the  laying  of  flat  rails  through  Main  street 
in  that  city,  with  permission  to  run  their  cars  by  steam,  at 
the  rate  of  not  more  than  six  miles  an  hour ;  but  they  did 
not  obtain  the  consent  of  the  individual  owners  on  the  street, 
nor  did  they  have  any  estimate  of  damage  awarded.  An  in¬ 
junction  was  granted  on  the  application  of  certain  citizens 
of  Louisville,  alleging  that  the  rail  road  through  the  city 
was  a  nuisance  and  unlawful  encroachment  on  their  private 
rights  of  property. 


Doc.  No.  54.] 


562 


Ten  witnesses  were  sworn  on  the  part  of  the  complain¬ 
ants,  who  testified  that  the  rails  obstructed  the  free  and  con¬ 
venient  public  use  of  Main  street,  and  that  the  locomotives 
alarmed  horses,  and  endangered  persons  travelling  on  foot, 
or  in  carriages,  and  they  all  agreed  that  the  rail  road  had 
the  effect  of  diminishing  the  value  of  real  estate  on  Main 
street,  and  of  injuring  the  business  of  those  who  resided 
there. 

On  the  side  of  the  Company,  sixteen  witnesses  were  pro¬ 
duced,  who  testified  that  the  rail  road  itself  was  no  obstruc¬ 
tion,  whatever,  to  the  safe,  free  and  convenient  public  use  of 
the  entire  street ;  that  the  prosperity  of  Louisville  and  the 
public  interest  had  been  promoted  by  the  use  of  the  rail 
road.  None  of  them  considered  the  use  as  made  of  the  road, 
even  with  steam  power ,  as  injuriously  affecting  the  value  of 

property,  the  productiveness  of  business,  or  security  of  per- 

/ 

sons  on  Main  street  or  elsewhere.  And  most  of  them  were 
of  the  opinion  that  cars  propelled  by  steam,  with  a  velocity 
not  exceeding  six  miles  an  hour,  were  more  safe  to  the  pub¬ 
lic  than  cars  drawn  by  horses,  and  were  not  more  perilous 
and  inconvenient  than  hacks,  stages  and  omnibuses. 

The  Chancellor,  notwithstanding  the  preponderance  of 
testimony,  gave  his  opinion  that  the  case  showed  a  common 
nuisance,  by  which  the  plaintiffs  had  special  damage  ;  a  dis¬ 
turbance  of  easements,  annexed,  by  grant,  to  private  estates ; 
of  a  Corporation  abusing  the  powers  arising  out  of  the  Act 
of  incorporation,  and  finally  of  a  disregard  of  private  right, 
of  a  vexatious  character,  and  degenerating  into  a  species  of 
irreparable  nuisance ;  and  granted  a  perpetual  injunction 
against  the  Company.  > 

The  decree  of  the  Chancellor  was  appealed  from  and  re¬ 
versed  by  the  Court  of  Appeals,  on  the  ground  that  the 
weight  of  evidence  disproved  the  charges  in  the  plaintiff’s 

bill. 

They  say,  “We  do  not  wish  to  be  understood  as  deciding 
that  we  are  satisfied  that  the  use  of  the  rail  ways  as  hitherto 


9 


v  563  [Doc.  No.  54. 

made  in  Louisville,  was  not,  in  any  respect,  a  nuisance.  All 
that  we  have  decided,  or  intend  to  decide,  is  that  the  facts, 
upon  which,  alone,  we  have  had  to  adjudicate,  do  not  autho¬ 
rize  the  judicial  deduction,  that  a  nuisance  has  been  suffi¬ 
ciently  proved.  If  it  shall  ever  hereafter  satisfactorily  ap¬ 
pear,  upon  other  proof,  that  such  use  as  that  complained  of, 
encroaches  on  any  private  right,  or  obstructs  the  reasonable 
use  and  enjoyment  of  the  street,  by  any  person,  who  has  an 
equal  right  to  the  use  of  it,  we  shall  be  ready  to  enjoin  all 
such  wrongful  appropriation  of  the  highway.” 

The  Court  of  Appeals  admit  that  there  is  no  constitutional 
authority  for  closing  or  discontinuing  any  street,  or  even  for 
applying  it  to  any  public  or  private  use,  incompatible  with 
any  one  of  the  ends  for  which  such  street  was  established, 
without  first  obtaining  the  consent  of  the  owners  of  lots 
thereon ,  or  without  making  just  compensation  to  them,  for 
any  damage  which  may  result  to  their  property,  from  such 
occlusion,  discontinuance  or  new  application  of  the  street. 

It  thus  appears,  that  the  whole  question  whether  the  Act 
of  the  Legislature  and  the  consent  of  the  Corporation  are  suf¬ 
ficient  to  authorize  the  Harlaem  Rail  Road  Company  to  place 
their  rails  in  the  public  streets,  will  depend  upon  whether 
the  rights  of  the  owners  adjoining  the  streets,  through  which 
the  rails  are  constructed,  are  thereby,  in  any  degree,  in¬ 
fringed  or  their  interests  impaired. 

My  opinion  is,  with  reference  to  the  nature  of  the  tenure 
of  such  adjoining  owners,  and  of  the  rights  of  the  Corpora¬ 
tion  therein,  that  the  consent  of  the  Corporation  is  not  suffi¬ 
cient  to  confer  upon  the  Company  the  right  of  constructing 
and  using  the  rails  in  the  public  streets,  without  the  super- 
added  consent  of  such  owners ,  or  the  award  of  damages 
for  the  injury  which  they  may  sustain. 

Such,  in  my  opinion,  is  the  only  sound  construction  of 
the  Company’s  Charter.  It  provides,  as  we  have  seen,  that 
the  lands  taken  and  used  shall  be  obtained  either  by  dona¬ 
tion  or  purchase  from  the  owners.  The  adjacent  owners,  in 


Doc.  No.  54.] 


564 


some  cases,  are  the  owners  of  the  fee :  and  in  all  cases,  they 
are  the  owners  of  a  special  interest  in  the  street  itself,  of 
which  they  can  only  be  divested  in  the  mode  pointed  out  by 
the  Constitution.  If  the  Charter  is  to  be  so  construed  as 
not  to  provide  any  such  means  of  compensation,  it  is  my 
opinion  that  the  Charter  is  void  and  of  no  effect. 

This  last  conclusion  is  founded  upon  the  case  of  Gardner 
vs.  the  Trustees  of  the  Village  of  Newburgh,  2  Johnson’s 
Ch’y  Reports,  162,  where  it  appeared  that  the  Legislature 
had  authorized  the  defendants  to  supply  the  Village  of  New¬ 
burgh  with  water,  by  diverting  a  stream  running  through 
the  plaintiff’s  land,  providing  compensation  for  the  carrying 
the  works  through  his  land,  but  not  for  the  loss  to  him  of  the 
use  of  the  stream  itself  and  the  Court  held  that  the  plaintiff 
had  a  valid  right  to  the  use  of  the  water,  and  that  he  ought 
not  to  be  deprived  of  it,  and  that  they  could  not  suppose  it 
was  intended  he  should  be  deprived  of  it,  without  his  con¬ 
sent — or  without  making  him  a  just  compensation.  That 
the  Act  was  unintentionally  defective,  in  not  providing  for 
his  case — that  it  ought  not  to  be  enforced,  and  that  it  was 
not  intended  to  be  enforced  until  such  provision  should  be 
made. 

N  % 

Respectfully  submitted. 


New  York ,  February  24,  1840. 


P.  A.  COWDREY. 


